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Polygamy in Canada: Legal and Social Implications for Women and Children – A Collection of Policy Research Reports

Separate and Unequal: The Women and Children of Polygamy

PART II: ANTI-POLYGAMY LAWS AND RELIGIOUS FREEDOM

Freedom of Religion and Anti-Polygamy Laws

Historically, in Canada, the Constitution Act, 1867⁹² provided protection for denominational schools in s. 93. However, freedom of religion was not listed under the heads of power in Canada's Constitution Act, 1867. Canadian courts did recognize freedom of religion as having constitutional status.⁹³ However, because religion was not a head of power listed in the Constitution Act, 1867, most of the historical case law focussed on assigning religion to a particular head of power, rather than determining the meaning of "freedom of religion" (Beaudoin and Ratushny 1989: 173).

Charter s. 2(a)

Unlike in the Constitution Act, 1867, religion is clearly featured in the Charter. The preamble to the Charter says that "Canada is founded upon principles that recognize the supremacy of God and the rule of law." In addition, Charter s. 2(a) guarantees freedom of religion and conscience. Nevertheless, because they are complex terms, there is no comprehensive definition of "religion" or "conscience" in Canadian legislation. Canadian case law does provide some guidance as to the breadth of these terms.

Legal decisions under Charter s. 2(a) fall under three general categories: Conflicts with legislation or by-laws (e.g., Sunday closing laws), parental rights (e.g., in medical decisions) and educational issues (e.g., funding and religious instruction).⁹⁴ The leading Supreme Court of Canada decision on freedom of religion deals with a challenge to Sunday closing legislation. In R. v. Big M Drug Mart,⁹⁵ the Supreme Court of Canada (Dickson J.) held that the Lord's Day Act violated Charter s. 2(a) and was not saved by Charter s. 1. In describing freedom of religion, Justice Dickson said:

¶ 94 A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter. Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.

¶ 95 Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

Subsequent legal decisions have described the above passage as the essence of freedom of religion in Canada.⁹⁶ In the passage, there are three aspects to the guarantee of freedom of religion noted by Justice Dickson:

• the right to entertain religious beliefs as one chooses;
  
  
• the right to declare religious beliefs openly without fear of any hindrance or punishment; and
  
  
• the right to show that belief by worship and practice or by teaching and dissemination.

Thus, religion and conscience encompass more than the beliefs of organized religions of the world, but also include purely private beliefs and practices (Beaudoin and Ratushny 1989: 173). In addition, Big M Drug Mart makes it clear that in Canada we are granted freedom of religion and freedom from religion (Beaudoin and Ratushny 1989: 174).

Freedom, in Justice Dickson's judgment, is the absence of coercion or constraint. Justice Dickson also notes that there may be limitations on a freedom as are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others. Thus, the freedom of religion provided in the Charter is not absolute and will involve a balancing with other competing claims of members of society.⁹⁷

A second seminal case on Sunday closing is R. v. Edwards Books and Arts Ltd.⁹⁸ In that case, the Supreme Court of Canada held that Ontario's Sunday closing legislation infringed the freedom of religion of some of the retailers, but was justified under Charter s. 1 as a reasonable and proportional legislative attempt to protect retail workers by ensuring that there is a common pause day.

In Edwards Books, Justice Dickson said that "the purpose of Charter s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one's perception of oneself, humankind, nature and, in some cases, a higher or different order of being."⁹⁹ Justice Dickson went on to say: "The Charter shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened."¹⁰⁰

In one recent pronouncement on freedom of religion, Syndicat Northcrest v. Amselem,¹⁰¹ the Supreme Court of Canada dealt with whether condominium by-laws preventing Orthodox Jewish condominium owners from setting up succahs (religious huts) on their balconies violated their freedom of religion under the Quebec Charter of Human Rights and Freedoms.¹⁰² The Supreme Court of Canada (per McLachlin J. et al.) discussed freedom of religion under the Quebec Charter and under the Canadian Charter.

The Supreme Court noted:

[R]eligion typically involves a particular and comprehensive system of faith and worship.… In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual's spiritual faith and integrally linked to one's self-definitions and spiritual fulfillment, the practices of which allows individuals to foster a connection with the divine or with the subject or object of that spiritual faith.¹⁰³

The Court noted that it had long articulated an expansive definition of freedom of religion "which revolves around personal choice and individual autonomy and freedom."¹⁰⁴ The Court also stressed that it is not qualified to rule on the validity or veracity of a particular religious practice or belief. However, it is qualified to inquire into the sincerity of the belief, if that is an issue.¹⁰⁵ In Ross, Justice LaForest indicated that it is not appropriate for courts to examine a particular religious belief, but will simply protect all beliefs that are sincerely held. The court stated that it was not open to the Court to question a belief's validity.¹⁰⁶ In sum, a person alleging a claim involving her or his freedom of religion must show the court that she or he has a practice or belief with a nexus with religion which calls for a particular conduct, engendering a personal connection with the subject or object of the individual's spiritual belief, and that she or he is sincere in that belief.¹⁰⁷

Beaudoin and Ratushny (1989: 174) argued that an expansive approach to Charter s. 2(a) is also supported by the inclusion of "conscience" in s. 2(a). This was exemplified in the case R. v. W.H. Smith Ltd. et al.¹⁰⁸ wherein the court stated that the inclusion of conscience in Charter s. 2(a) was intended to include beliefs that are fundamental to their adherents but which do not include the "concept of a theistic centre among the cardinal principles of belief."¹⁰⁹

Horwitz (1996: 2-3) argued that freedom of religion is not well defined in Canadian case law. He suggested the following minimal criteria for a claim to fall under Charter s. 2(a):

(i) a belief that is spiritual, supernatural or transcendent in nature, whether or not it is shared by anyone else, so long as it is sincerely held;
(ii) the belief is best served or honoured by certain behaviour, whether individually or in a group;
(iii) if the behaviour is not actually compelled by the belief, it should be part of the regular practice of a group of common faith-holders.

Freedom of religion in Canada appears to encompass both the positive right to hold religious beliefs and to manifest those beliefs, and the negative right to freedom from religion. In the case of free exercise of religion, the Supreme Court of Canada envisages the wide application of Charter s. 2(a) to interference that is "direct or indirect, intentional or unintentional, foreseeable or unforeseeable."¹¹⁰ At the same time, "trivial or insubstantial" burdens on religious freedom are outside the ambit of s. 2(a).¹¹¹

As noted above, a number of criminal laws in Canada apply generally, but may limit one's freedoms in a tangential or trivial way. For example, some religions hold that wives must obey their husbands. However, the Code provides that a wife can refuse to consent to sexual intercourse, and if the husband does not respect the refusal, he can be charged with and convicted of sexual assault. This provision may appear to violate the husband's freedom of religion, but the harm that is protected outweighs these concerns. Thus, a person's religious beliefs may have to be limited by the reality that it is illegal to force a person to have sex, even if she is your spouse. In the same way, it may be argued that the harm prevented by anti-polygamy laws outweighs any entrenchment on the freedom of religion of those who sincerely believe polygamy is a religious tenet.

It is unlikely, however, that anti-polygamy laws will be found to be trivial or insubstantial burdens on the current religious communities that practise polygamy. Based on their practices, it appears that polygamy is a fundamental part of the religion they practise and that anti-polygamy laws would pose more than an insubstantial or tangential burden on the community. Thus, at first analysis, it would appear that anti-polygamy laws offend Charter s. 2(a).

Freedom of Conscience and Religion in International Law

With regard to freedom of religion, the International Covenant on Civil and Political Rights (acceded to by Canada in 1976) (ICCPR),¹¹² contains provisions that are quite similar to those contained in the Charter. Article 18 reads:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
   
   
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
   
   
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
   
   
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Beaudoin and Ratushny (1989: 190) noted that the provision in Article 18(3) mirrors Charter s. 1 and is congruent with the holding of the Supreme Court of Canada in Big M Drug Mart that freedom under the Charter is "subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others."¹¹³ The ICCPR was referred to by the Ontario Court of Appeal in R. v. Videoflicks,¹¹⁴ the lower court decision of Edwards Book.The court noted that Article 18 mandated a multi-faceted right to observe and express religious beliefs "beyond the ability to hold certain beliefs without coercion and restraint."¹¹⁵

Thus, based on our domestic jurisprudence supported by international law, if people in a group, such as Bountiful, assert that polygamy is a basic religious tenet sincerely held, the case law indicates that Canadian courts would accept that assertion and would initially find that the freedom of religion of the group was engaged. However, as noted, the analysis is not yet complete.

Freedom of Religion in the United States

American case law may shed some light on the interpretation of freedom of religion and polygamy, bearing in mind the significant differences between the constitutional framework for freedom of religion in the United States and freedom of religion under the Canadian Charter.

The First Amendment to the United States Constitution¹¹⁶ guarantees the free exercise of religion and ensures that the federal government complies with the non-establishment principle. This principle says that the government will not sponsor, support or actively involve itself with a particular religion or a religion in general. (Canada does not have a non-establishment clause per se.) The case law on the free exercise of religion is most relevant to Canadian jurisprudence. In the United States, there is absolute freedom of religious belief or non-belief. Additionally, expression of religion or practice is generally only subject to limits that are clearly necessary for society's protection.

Free exercise of religion in the United States is protected if the belief is sincerely held and is a religious belief of any kind.¹¹⁷ The belief does not need to be part of an organized religion and includes beliefs held by non-traditional religions, such as indigenous religions, secular humanism, atheism and polytheism.¹¹⁸ An open-ended approach to freedom of religion was adopted in the California court in Re Hinckley's Estate.¹¹⁹ In this case the court said: "The word 'religion', in its primary sense…imports, as applied to moral questions, only recognition of a conscious duty to obey restraining principles of conduct. In such sense, we suppose there is no one who will admit that he is without religion."

As noted previously, in general, the United States jurisprudence differentiates between religious belief and religious practice. The freedom of religious belief is absolute, but the immunity afforded religious practices by the First Amendment is not absolute.

The United States courts have followed one of two tests to determine if a law infringes the free exercise of religion. The first is the "strict scrutiny test." The state may abridge religious practices only if it is demonstrated that some compelling state interest outweighs the individual's interest in freedom of religion. In these cases, the court follows a two-step analysis. First, it determines whether the statute poses a burden on the applicant's freedom of religion, and then second, whether a compelling state interest justifies the infringement. The second line of U.S. cases follows the less stringent "facially neutral and generally applicable statutes that do not have as their primary purpose burdening of religious practice" test. For a summary of these decisions, please see Appendix A.

Discussion

The United States jurisprudence on polygamy has been criticized for relying on public morality rhetoric rather than providing a detailed analysis into the government's legitimate interest in its criminalization (Vazquez 2001-2002: 244). Some have also noted that the original anti-polygamy laws were passed in response to anti-Mormon sentiments in the United States and were not really based on any legitimate state interest.¹²⁰ (It should be noted that Canada does not have a similar history of laws directed at Mormon polygamy.) Some have argued that there are few factual proofs that polygamy is dangerous, that it does not degrade women, that women are free to leave polygamous relationships, and that it may have advantages over monogamous relationships (Donovan 2002: 566-586). Proponents of finding anti-polygamy laws to be unconstitutional also point to the difficulty of prosecuting polygamy, because it is similar to simple cohabitation. Further, if police were to enforce polygamy laws, families would be broken up as parents go to prison (Gillett 1999-2000: 520). Finally, it should be noted that the American Civil Liberties Union has stated that it "believes that the criminal and civil laws penalizing the practice of plural marriage violate constitutional protections of freedom of expression and association, freedom of religion, and privacy for personal relationships among consenting adults" (ACLU nd).

Although opponents of anti-polygamy laws argue that selective prosecution of the individual crimes is preferable as it infringes less on the free exercise of religion, Vazquez (2001-2002: 246-247) argued that it may be impossible to target crimes committed under the "cloak of religion" without targeting that religion in any event, which could be unconstitutional.

Applicability of U.S. Jurisprudence to Freedom of Religion in Canada

As we have seen, the U.S. cases applied the "compelling state interest" or "strict scrutiny test" to freedom of religion and later developed the "facially neutral" test. It must be remembered that there is no equivalent to Charter s. 1 in the American Constitution. Any limits to a right are determined through internal application of doctrines like the compelling state interest or facially neutral test to the right itself. On the other hand, in Canada, the Charter provides for explicit overrides to guaranteed rights and freedoms in ss. 1 and 33. While Charter s. 1 may bear some resemblance to the compelling state interest doctrine, it is not clear to what extent United States jurisprudence will apply, especially in view of the more recent development of the facially neutral test.

Beaudoin and Ratushny indicated that Charter s. 1 and the jurisprudence that has arisen to expound on the nature of the limits implied in that section clearly bear a resemblance to the compelling state interest test as set out in Sherber.¹²¹ The authors note that Dickson J. in Big M Drug Mart says:

What unites freedoms in the American First Amendment, s. 2(a) of the Charter and in the provisions of the other human rights documents in which they are associated is the notion of the centrality of individual conscience and the inappropriateness of governmental intervention to compel or constrain its manifestation.… It is because of the centrality of the rights associated with freedom of individual conscience both to basic beliefs about human worth and dignity and to a free and democratic political system that American jurisprudence has emphasized the primacy or "firstness" of the First Amendment. It is this same centrality that in my view underlies their designation in the Canadian Charter of Rights and Freedoms as "fundamental".¹²²

However, as noted previously, the Charter does not have a clearly set out establishment clause as part of s. 2(a). Thus, U.S. jurisprudence on polygamy and freedom of religion may be somewhat helpful, but should be applied with caution to Canadian freedom of religion issues.

Limits on Freedom of Religion in Canada

While the justices of the Supreme Court of Canada seem to disagree on whether the limits to freedom of religion should be applied during the Charter s. 2(a) analysis or during the Charter s. 1 stage, they do recognize that there are limits to the right. These limits appear to fall into one of three categories: conflicts with other rights, harm (individual and public safety), and significant societal interests. While there are no legal decisions indicating how the court might view polygamy law as a limit on freedom of religion, other cases provide guidance as to how such an issue would be decided.

In Amselem, the Supreme Court of Canada noted that often individual rights will compete with each other. In fact, although a broad and expansive interpretation of freedom of religion should be taken initially, the court noted that "our jurisprudence does not allow individuals to do absolutely anything in the name of that freedom."¹²³ The court went on to say:

Even if individuals demonstrate that they sincerely believe in the religious essence of an action, for example, that a particular practice will subjectively engender a genuine connection with the divine or with the subject or object of their faith, and even if they demonstrate non-trivial or non-insubstantial interference with that practice, they will still have to consider how the exercise of their right impacts upon the rights of others in the context of competing rights of individuals. Conduct which would potentially cause harm to or interference with the rights of others would not automatically be protected. The ultimate protection of any particular Charter right must be measured in relation to other rights and with a view to the underlying context in which the apparent conflict arises.¹²⁴

In Amselem, the majority of the Supreme Court held that the intrusions or effect on the respondent's right to personal security and right to enjoy property (by allowing the appellants to exercise their freedom of religion) were minimal and could not be considered as imposing valid limits on the exercise of freedom of religion.¹²⁵

In the case of polygamy, it cannot be said that the intrusions on gender equality rights are minimal. Consequently, the court would have to balance the right to freedom of religion with gender equality rights under a full s. 1 analysis.

Further guidance may be obtained from Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village).¹²⁶ In this case, a group of Jehovah Witnesses was denied a change in a zoning by-law so they could build a church. The majority of the Supreme Court of Canada dealt with the issue on the basis of administrative law principles. However, the dissenting justices (per Bastarache J.) discussed freedom of religion at length. Stressing that the state is an essentially neutral intermediary between various denominations and between denominations and civil society,¹²⁷ Bastarache J. went on to emphasize that the right to freedom of religion is not absolute. "This freedom is limited by the rights and freedoms of others. The diversity of opinions and convictions requires mutual tolerance and respect for others. Freedom of religion is subject to limits necessary 'to protect public safety, order, health or morals'" [citations omitted].¹²⁸

Cases involving the role of freedom of religion in family issues shed some light on how the Supreme Court of Canada might view harm in the context of freedom of religion. In B. (R.) v. Children's Aid Society of Metropolitan Toronto,¹²⁹ the Children's Aid Society applied to take a child into care because, for religious reasons, the parents refused to allow the child to undergo a blood transfusion. Five of the nine Supreme Court of Canada justices who heard the case agreed that the child protection order violated the parents' freedom of religion, concluding that Charter s. 2(a) protected religious beliefs - even if those beliefs could harm another. Nevertheless, the impugned legislation was saved by Charter s. 1. Speaking for the majority, Justice La Forest said:

¶107 However, as the Court of Appeal noted, freedom of religion is not absolute. While it is difficult to conceive of any limitations on religious beliefs, the same cannot be said of religious practices, notably when they impact on the fundamental rights and freedoms of others. The United States Supreme Court has come to a similar conclusion; see Cantwell v. Connecticut, 310 U.S. 296 (1940). In R. v. Big M Drug Mart Ltd., supra, this Court observed that freedom of religion could be subjected to "such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others" (p. 337). Similarly, in P. (D.) v. S. (C.), supra, L'Heureux-Dubé J. wrote, in obiter, at p. 182:

I am of the view, finally, that there would be no infringement of the freedom of religion provided for in s. 2(a) were the Charter to apply to such orders when they are made in the child's best interests. As the Court has reiterated many times, freedom of religion, like any freedom, is not absolute. It is inherently limited by the rights and freedoms of others. Whereas parents are free to choose and practice the religion of their choice, such activities can and must be restricted when they are against the child's best interests, without thereby infringing the parents' freedom of religion.

Although the majority noted that freedom of religion could be limited, in this particular case, the court held that it should not formulate internal limits to the scope of freedom of religion; rather it should leave the balance of competing rights (state interests vs. individual rights) to a Charter s. 1 analysis.¹³⁰ This is because Charter s. 1 was a more flexible tool with which to balance state restrictions on rights versus individual rights.

Four justices argued that the right to freedom of religion should not include conduct endangering the life or seriously endangering the health of children. Speaking for the minority, Justice Iacobucci said:

¶224 However, the freedom of religion is not absolute. Although La Forest J. considered that limitations on this right are best considered under a s. 1 analysis, we are of the view that the right itself must have a definition, and even if a broad and flexible definition is appropriate, there must be an outer boundary. Conduct which lies outside that boundary is not protected by the Charter. That boundary is reached in the circumstances of this case.

The minority held that Charter s. 2(a) might be limited when it is called on to protect activity that "threatens the physical or psychological well-being of others."¹³¹ The minority also noted that "although the freedom of belief may be broad, the freedom to act upon those beliefs is considerably narrower, and it is the latter freedom at issue in this case."¹³²

In sum, five of the justices would seek to provide wide protection to freedom of religion and to require any restrictions be justified under Charter s. 1. Four of the justices would argue that there are some limitations to the right to freedom of religion, which can be applied to limit the scope of the right itself.

Dr. Epp Buckingham (2001: 477) noted that the Supreme Court of Canada has defined religious freedom in Big M Drug Mart, but has not clearly defined its appropriate limits. Horwitz (1996: 2-3) also noted that the conflict between religion and the state has not usually focussed on whether the state and its laws may interfere with religious obligations, thereby forcing someone to obey a law that is in conflict with her/his religious beliefs. Horwitz (1996: 3) suggested that the influx of immigrants with diverse religious beliefs may well necessitate recognition that there will be more conflicts between the practices of religious minorities and laws written by the majority. He compared the situation in Canada with that of the United States, wherein recent legal decisions emphasize that legislation and the goals of the state usually take precedence over freedom of religion.¹³³

Conflicting Rights under the Charter (Freedom of Religion vs. Gender Equality)

Rights provided under the Charter, such as the right to liberty and the right to equality,¹³⁴ may compete. Then, the issue becomes, should one right supercede the other, should the rights be reconciled or should some other process be followed?

The international community has dealt with the issue of the hierarchy of rights. The Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in 1993,¹³⁵ states at Part 1 paragraph 5: "All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis." Canada was involved in drafting the Declaration.

How have Canadian courts reconciled apparently conflicting Charter rights in the cases to date? The general principle is stated in Dagenais v. Canadian Broadcasting Corp¹³⁶ where the Supreme Court of Canada held that the Charter does not create a hierarchy of rights.¹³⁷ Further, when the protected rights of two individuals come into conflict, Charter principles "require a balance to be achieved that fully respects the importance of both sets of rights."¹³⁸ The fact that the Charter rights and freedoms are not hierarchical and the need to balance competing rights appropriately are significant for this paper.

Dr. Epp Buckingham stated that the courts have not yet established a consistent or adequate framework for resolving competing rights in the area of freedom of religion.¹³⁹ There are some cases involving freedom of religion in apparent conflict with another Charter right. In Ross, a teacher was ordered removed from his teaching position for discriminatory statements he made while off duty. The New Brunswick Human Rights Commission had conceded that the order infringed Ross' freedom of religion under Charter s. 2(a), but the Canadian Jewish Congress argued that the order did not. The Supreme Court of Canada held that a broad interpretation of the right is preferred, leaving the competing rights to be reconciled under the s. 1 analysis adopted in the R. v. Oakes decision. The court noted that this approach is analytically preferable, because it gives the broadest possible scope to judicial review under the Charter and provides a more "comprehensive method of assessing the relevant conflicting values."¹⁴⁰ That being said, the court stated that if the effect on religious belief were tangential or insubstantial, an elaborate consideration of the Oakes test would not be necessary.¹⁴¹ In Ross the Supreme Court of Canada determined that the order infringed Ross's freedom of religion (and freedom of expression) and should be examined to see if it could be justified under Charter s. 1. In applying s. 1, the court found that the government had a legitimate objective - a discrimination-free educational environment - and thus its actions were saved by Charter s. 1.

On the other hand, the majority of the Supreme Court of Canada followed a different analytical model in Trinity Western University v. British Columbia College of Teachers.¹⁴² In this case, a private religious university (Trinity) offered a degree in education. In the fifth and last year of the program, the degree program was offered under the aegis of Simon Fraser University. Trinity applied to the British Columbia College of Teachers (BCCT) to assume full responsibility for the teacher education program, but BCCT refused, because it was concerned that the Trinity Community Standards embodied discrimination against persons based on sexual orientation. These standards referred to "sexual sins including ...homosexual behaviour." The lower courts found that there was no reasonable foundation for the finding of discrimination. In affirming the lower courts' decision, the majority of the Supreme Court of Canada stated that the heart of the issue was how to reconcile the religious freedoms of individuals wishing to attend Trinity with the equality concerns of students in British Columbia's public school system. The court noted that neither freedom of religion nor the guarantee against discrimination on the basis of sexual orientation is absolute.¹⁴³ The Court also said that the Charter must be read as a whole, so one right is not privileged at the expense of another.¹⁴⁴ Thus, freedom of religion co-exists with the right to be free from discrimination based on sexual orientation.¹⁴⁵ The court held that the proper place to draw the line is between belief and conduct and said that "[t]he freedom to hold beliefs is broader than the freedom to act on them."¹⁴⁶ The freedom of religion of the students at Trinity was to be respected absent concrete evidence that training teachers at Trinity fosters discrimination in the public schools.¹⁴⁷ The scope of freedom of religion and equality rights that come into conflict can be circumscribed and reconciled because a teacher in the public system who engages in discriminatory conduct can be subject to disciplinary proceedings before the BCCT. Because it was able to balance the competing rights, the majority did not pursue a Charter s. 1 analysis.

Justice L'Heureux-Dubé, in dissent, clearly preferred the model set out in Ross, where conflicting rights are to be addressed in a Charter s. 1 analysis. However, she did not find that the applicant's freedom of religion was infringed in the case.

Dr. Epp Buckingham (2001: 488) suggested that the bifurcation between belief and practice used by the majority in Trinity should be used with caution because any limitation on religious practices should be seriously circumscribed. Otherwise the distinction could be used to limit legitimate and "deeply valued religious practices that are at the core of religious identity."

Recently, the Supreme Court of Canada seems to have reconciled the apparent contradiction between the methodologies for resolving conflicts of rights as provided in Trinity versus that used in Ross. The Reference re Same-Sex Marriage¹⁴⁸ included a reference question on the freedom of religion of officials who are asked to perform same-sex marriages contrary to their religious beliefs. The Supreme Court of Canada ruled that Charter s. 2(a) was generally broad enough to protect religious officials, but without a specific set of facts, declined to speculate on all possible situations that might arise. The Court was also asked to opine on whether s. 1 of the proposed marriage legislation would create a collision of rights. This section provides that "1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others."¹⁴⁹ The court dealt with what should occur when it appears that two rights might collide. First, the court noted that the first question is whether the rights alleged to conflict can be reconciled, citing Trinity. If the rights cannot be reconciled, then a true conflict of rights is made out. In such cases, the court will find a limit on religious freedom and go on to balance the interests at stake under s. 1 (citing Ross). The Supreme Court also noted that many, if not all, conflicts between rights would be resolved within the Charter, "by the delineation of rights prescribed by the cases relating to s. 2(a)."¹⁵⁰ Resolution of conflicts of rights generally occurs "within the ambit of the Charter, itself by way of internal balancing and delineation."¹⁵¹

Dr. Epp Buckingham (2001: 488) felt the approach followed by the majority in Trinity (the delineation of rights approach) was preferable, because it allows a more flexible approach to dealing with competing rights than is available in an Oakes analysis. Then, if the rights cannot be delineated to resolve the conflict, it should be resolved under a "flexible interpretation of the general limitation clause" (Epp Buckingham 2001: 500-501). This analysis would seem to be supported in the most part by the approach suggested by the Supreme Court of Canada in the Same-Sex Reference.

It appears that in the case of a conflict between freedom of religion and gender equality, the current weight of authority in Canada would support a very broad definition of freedom of religion under Charter s. 2(a), with an initial attempt to resolve any conflict between these rights, followed by a consideration of any unresolved competing rights under the Charter s. 1 analysis.

It seems to be highly likely that, in the case of polygamy, a conflict between gender equality and freedom of religion could not be resolved under a Charter s. 2(a) analysis. Because polygamy as a practice is harmful and offends the Charter right to gender equality, anything short of prohibition is untenable. Thus, the court will be required to balance the two competing rights under Charter s. 1.

Horwitz (1996: 56-61) set out his suggested approach to a Charter s. 1 analysis in a freedom of religion case. He argued that the court should approach any conflict between religion and the state from the perspective of the believer. This is because it is not fair to compare a person's belief to the rational, provable interests of the state (Horwitz 1996: 56). Even if the Charter s. 1 analysis is taken from the believer's perspective, Horwitz (1996: 57) admitted that there will be situations in which the state's interest outweighs a person's religious duty. Second, the state should be required to show a compelling interest - an interest in achieving an essential goal, such as one that goes to the heart of democratic values - before it can overcome a conflicting religious claim (Horwitz 1996: 57). This requirement would apply to laws of general application, even if a high administrative burden were imposed on the state. He admits that despite these "stringent protections" there will be justifiable restrictions on religious activity (Horwitz 1996: 57-58). These include harm to non-religious third parties or "grave harm to those who are religious but not perfectly autonomous and thus under the special care of the state" (Horwitz 1996: 58). He cited the example of children requiring blood transfusions to illustrate people who would fit this requirement. Finally, Horwitz (1996: 58) asserted that the state should provide exemptions to laws of general application on the basis of religion.

Professor Etherington (1994: ¶4.2.2.3 ) noted that there is a sharp division of opinion about how much the law should exempt or accommodate religious marriage practices that violate the Code provisions on bigamy and polygamy. On the one hand, the Law Reform Commission of Canada (LRC) recommended in 1985 that polygamy be removed, yet bigamy retained in the Code.¹⁵² The LRC justified this recommendation, because polygamy was a marginal practice (like adultery) which corresponded to no "meaningful legal or social reality in Canada" (LRC 1985: 23). The LRC (1985: 23) also argued that civil institutions were sufficient to foresee and "control the phenomenon of polygamy." The Commission (1985: 23) also noted that polygamy does not "compete in Canada with the institution of monogamous marriage." On the other hand, Kazi argued that polygamy and bigamy should not be legalized, because this would support patriarchal religious practices "which are denigrating [sic] to the status of women in society, and thus do present a significant harm to participants and to others in society."¹⁵³

The recommendation of the LRC might be tempered by the fact that polygamy is a very real phenomenon in Canada today, 20 years after its 1985 recommendation. Second, the LRC analysis did not address polygamy's personal harm implications, nor its implications for gender equality. Finally, even if a practice is marginal, if Parliament determines that the harm it causes is real, it will legislate against it. Arguably, treason does not often occur in Canada,¹⁵⁴ but we have recognized that it causes harm and should be illegal. Therefore, the argument that we need not legislate against polygamy, because it is merely a marginal practice has logical flaws.

Perhaps a recent decision of the Supreme Court of Utah should be regarded as the best word on the issue of the extent to which a democratic state can take action that may indeed, in its effect, negatively impact the religious belief of a person or group. In its 2004 ruling in State v. Green,¹⁵⁵ Utah's Supreme Court unequivocally said:

Most importantly, Utah's bigamy statute serves the State's interest in protecting vulnerable individuals from exploitation and abuse. The practice of polygamy, in particular, often coincides with crimes targeting women and children. Crimes not unusually attendant to the practice of polygamy include incest, sexual assault, statutory rape, and failure to pay child support…. Moreover, the closed nature of polygamous communities makes obtaining evidence of and prosecuting these crimes challenging.¹⁵⁶

The court decided that the interests of women and children in this matter should be paramount, even as it acknowledged the evidentiary difficulty that police and prosecutors face in pursuing criminal charges against practising polygamists who assert as justification freedom of religion. Although of no precedent value for a Canadian court that may have to one day consider criminal charges of polygamy under s. 293 of the Code, the Utah court's decision stands as eloquent testament to the challenge authorities in Utah face in dealing with this perplexing issue. The Utah Supreme Court's words may also be regarded as a reminder to Canadian law enforcement officers, justice officials, judges and lawyers about whose interests are truly at stake here against the backdrop of apparent official acquiescence to the practice of polygamy.

Does Code s. 293 Infringe Charter s. 2(a) and Can It Be Saved by Charter s. 1?

Based on the analysis of Canadian law above, if it can be established that a person practises polygamy for religious reasons,¹⁵⁷ then Code s. 293 might indeed evoke a challenge that it infringes freedom of religion under Charter s. 2(a). However, as noted, there are three possible approaches followed by Canadian courts that may prevent an ultimate finding that the right to freedom of religion has been breached. First, courts will examine whether the infringement of anti-polygamy law on freedom of religion is "tangential or insubstantial." If that is the case, then the legislation will be constitutional. Second, courts may balance and reconcile freedom of religion with the right to gender equality as they pertain to polygamy. If this is possible under a Charter s. 2(a) analysis, the court will find no infringement of freedom of religion. However, as we have concluded above, it is likely that the court will not be willing to find that the infringement is tangential; nor will they be able to reconcile the two rights. This leaves the court with the third stage: determining whether anti-polygamy laws may be saved by a Charter s. 1 analysis. Here the courts will consider whether freedom of religion may be limited by public safety, health, gender equality or other harms-based concerns about the practice of polygamy.

As noted previously, in a Charter s. 1 analysis, the government must establish that the objective underlying the limitation is of sufficient importance to warrant overriding a constitutionally protected right or freedom and that the means chosen to reach this objective are proportionate.¹⁵⁸ In making this analysis, the court must pay close attention to the factual and social context surrounding the enactment of the legislation.¹⁵⁹ These factors assist the court in characterizing the objective of the law that is under scrutiny.

Thus, any Charter s. 1 analysis would involve the balancing of the right to freedom of religion with concerns for gender equality. While there are no precedents that directly discuss how the court would balance freedom of religion and gender equality under Charter s. 1 in the context of anti-polygamy legislation, a number of legal decisions involve the balancing of our right to freedom of expression under Charter s. 2(b) with other rights or societal concerns under Charter s. 1. There are many different situations in which the court has recognized valid limitations on freedom of expression. These include the criminal prohibition against counselling someone to commit suicide; laws regulating materials and behaviour that are viewed as obscene; laws relating to defamation and hate speech and laws regulating advertising aimed at children. The one common feature is the court's reliance on harm as the justification for limiting freedom of expression.

In R. v. Butler,¹⁶⁰ for example, the Supreme Court decided that the limitation imposed on freedom of expression by the obscenity provisions in the Criminal Code was justified, because it supported an important social objective, namely, the protection of women and children from harm. It determined that the proliferation of sexually degrading and exploitive images harms women and children and that censoring these kinds of images is justified as a protective measure as well as a means of promoting the equality and dignity of all human beings. In R. v. Keegstra,¹⁶¹ the Court found that the Criminal Code provision prohibiting hate speech against Jews and other minority groups was a justified limitation on freedom of expression, because it served to promote two important and constitutionally recognized ideals, equality and the establishment of a multicultural society.¹⁶² In Canadian Newspaper Co. v. Canada,¹⁶³ the Court placed a higher value on the privacy rights of complainants in sexual assault cases and the goal of encouraging more victims to come forward and press charges against perpetrators than it did on freedom of the press. In this case, the Court upheld the Criminal Code provision which prevents the press from publishing the names of complainants in sexual assault cases.

These cases apply to the present analysis, because like freedom of religion, freedom of expression is given expansive recognition by Canadian courts. The limitations courts are prepared to recognize, such as those related to health, public safety, harm and societal interests, are very similar as well.

There are also legal decisions from British Columbia which discuss the infringement of freedom of religion of protesters who are not allowed within certain "no protest zones" around abortion clinics. The courts in these cases have indicated the freedom of religion was infringed, but that protecting women's equality rights is a valid reason to infringe the right under Charter s. 1.¹⁶⁴

Since the expressed concern is harm to women and children's equality rights by the practice of polygamy, it would be very difficult to conclude that the courts will disregard this harm in favour of freedom of religion. Although it is quite evident that courts will respect and uphold freedom of religion wherever possible, if it is shown that harm to women and children will be prevented with the enactment of polygamy law, courts will be hard pressed to ignore this evidence. Thus, it is quite reasonable to conclude that Canadian courts when balancing freedom of religion with equality rights when analyzing Code s. 293 would find that the provision survives Charter scrutiny.¹⁶⁵